This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

HIV and disclosure: How the Supreme Court of Canada got it wrong

Court’s decisions are a step backward for HIV prevention efforts, unjust for people living with HIV, and do nothing to advance sexual assault jurisprudence.

The Supreme Court of Canada has ruled that people living with HIV have a legal duty to tell their sexual partners about their HIV infection except in a narrow set of circumstances — where the risk that HIV would be transmitted approaches zero. (Oct. 17, 2011) (Adrian Wyld / THE CANADIAN PRESS)

By Alison Symington

Sun., Oct. 21, 2012

On Oct. 5, the Supreme Court of Canada released its decisions in two cases dealing with the tricky issues of criminal liability for HIV nondisclosure. The court ruled that people living with HIV have a legal duty to tell their sexual partners about their HIV infection except in a narrow set of circumstances — where the risk that HIV would be transmitted approaches zero. These decisions are a step backward for HIV prevention efforts, unjust for people living with HIV, and do nothing to advance sexual assault jurisprudence.

Unfortunately, some initial media reports of the decisions exhibited amnesia toward the state of the law on this issue, implying that people living with HIV could previously be found guilty for not always disclosing their HIV status to sexual partners, in every circumstance. Some coverage implied that these new decisions represented “get out of jail free” cards for people behaving irresponsibly, as if Canadians would no longer be able to protect themselves against infection.

First, let’s be clear about the law. Prior to these decisions, people living with HIV were legally obligated to disclose only before sex that posed a “significant risk” of HIV transmission. That was the legal test articulated by the Supreme Court in 1998, recognizing HIV nondisclosure could be a fraud that would invalidate consent to sex. But the court put an important limit on the information that a person is legally obligated to share: the law could not reasonably transform otherwise consensual sex into assault every time a person did not have full and complete information about a sexual partner. Thus the “significant risk of serious bodily harm” test was a necessary limit on criminal liability.

What the Supreme Court has now done is maintain the “significant risk” test but stripped “significant” of its meaning — by setting the bar at such an exceptionally low level of transmission risk. In these cases, the court only accepted both condom use and low viral load together as a defence. People living with HIV may now be at greater risk of prosecution, even if they take precautions to prevent transmission of the virus.

Second, let’s set the record straight about the risk of HIV transmission. Contrary to what many people believe, HIV is not easily transmitted. Statistically, it is estimated that unprotected vaginal sex with an HIV-positive man, for example, will result in the female sexual partner becoming infected with HIV once in every 1,250 sexual encounters (a 0.08 per cent risk). If the woman in a heterosexual couple is HIV-positive, transmission is estimated to occur once in every 2,500 sexual encounters (a 0.04 per cent risk).

Article Continued Below

Condoms are the primary safer sex tool because they work. If used properly, they are almost 100 per cent effective at preventing HIV infection. Even when they are not used perfectly, studies have demonstrated an 80 per cent reduction in the risk of HIV transmission when condoms are used (that is, 80 per cent fewer infections than the above statistical averages).

Developments in HIV treatment need to be celebrated for what they represent. With treatment today, people with HIV can live long and productive lives. Their life span approaches that of a person without HIV. Moreover, studies have now shown that when the virus is suppressed within a person’s system such that their immune system is no longer under attack — the goal of treatment — they are unlikely to transmit the virus. In fact, the most recent numbers say there is a 96-per-cent reduction in transmission with treatment (that is, 96-per-cent less than the already low risks outlined above).

No, these risks are not zero. And yes, many sexual partners would like to know precisely what risks they are accepting when they have sex, no matter how small or what sort of risk it is. But just because a person would like to know does not logically imply that as a society we should turn to our most blunt weapon — the criminal law — to compel full disclosure and punish omissions. Aggravated sexual assault (usually reserved for violent rapes) is one of the most serious offences in our Criminal Code. Conviction results in sexual offender registration and up to life imprisonment. Prosecuting cases of nondisclosure in negligible risk situations between consenting adults is simply unfair and not an appropriate or helpful use of aggravated sexual assault law.

Our highest courts need to do a more rigorous analysis of the scientific evidence and the realities of sexual health in 2012. With this decision, the Supreme Court has pushed us further away from justice, a meaningful understanding of sexual autonomy, and controlling the HIV epidemic in Canada. It has effectively given a stamp of approval to AIDS-phobia and sexual health misinformation, putting another tool into the hands of abusive partners that will be used against some of the most marginalized in our society. Let’s not forget that in one of the cases before the court, the defendant was a woman accused of nondisclosure by her violently abusive ex-boyfriend who was seeking revenge because she reported his abuse to the police. We are not saying that disclosure is not a good thing nor that there is never a role for criminal prosecution, but the Supreme Court has simply opened the door too widely.

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com